96]

97]

of the Second Class, and to Provide the Means
of Local Government Therefor," which is
given in substance ir said petition, together
with certain provisions of an Act amendatory
thereof, passed April 4, 1885.

Reference is also made to an Act of January
31, 1879, applicable to "the several communi-
ties embraced in the territorial limits of all
such municipal corporations in this State, as
have had, or may have, their charters
abolished," and which provides, as to the com-
missioners and trustee constituting governing
agencies, that "No writ of mandamus or other
process shall lie to compel them to levy any
taxes; nor shall the commissioners or said
trustee, nor the local government created by
this Act, pay or be liable for any debt created
by said extinct corporation, nor shall any of
the taxes collected under this Act ever be used
for the payment of any of said debts," which
prohibition in that Act and Acts amendatory
thereof petitioner insists is null and void.

which was not only withheld, but conspicuously
prohibited to those new organizations called
taxing districts.' The taxes for carrying on
the new contrivances were to be levied directly
by the Legislature itself upon the taxables
within their boundaries, and, that body not be-
ing amenable to any judicial coercion by man-
damus, it was believed that the creditors were
wholly without remedy. The Legislature then
provided for a settlement with creditors upon
the general basis of refunding the old indebted-
ness at the half, the amount at which the State
'settles' or 'compromises' its own indebtedness.
The taxes to pay the interest and principal of
the new bonds, like other taxes for municipal
purposes, were to be levied directly by the
Legislature; but provision is made that in de-
fault of such levy the 'taxing districts' may
themselves levy the necessary tax. Acts 1883,
c. 170, p. 224. This Act applies to all 'taxing
districts' of whatever class, and by its twentieth
section 'repeals all laws or parts of laws in con-
Petitioner avers that defendants have, under flict herewith."
"The Legislature re-
the Act of April 1, 1881, and the Act of April pealed the defendant's charter in 1879, the
4, 1885, power to levy and collect taxes to pay judgments here involved being at that time un-
said judgments, and then says: "That the de- satisfied in this court. Acts 1879, c. 27, p. 41.
fendant corporation, the Taxing District of In 1881 the formation of 'taxing districts of the
Brownsville, and its predecessor, the City of second class' was authorized, and under that
Brownsville, have no assets or means of pay- Act such a 'taxing district' was organized for
ment of petitioner's judgments aforesaid, and Brownsville in 1883. Acts 1881, c. 127, p. 174.
petitioner's only remedy to enforce the collec- By these two Acts 'commissioners' were substi-
tion of his judgments is that awarded by the tuted for the formerly existing 'mayor and
Act authorizing the issue of the bonds from aldermen,' with all the usual authority, legis-
which the coupons were detached upon which lative, executive and judicial, except the power
said judgments were obtained; and petitioner to levy taxes, which was prohibited; but the
is advised that said remedy remains in full Act of 1879 especially enacted that nothing
force against the defendants as the municipal contained in it should impair the obligation of
authorities of the Taxing District of Browns- then existing contracts, and the Act of 1881
ville, and can be invoked against them as 'hereby levied' a tax of one dollar per hundred,
effectually as it could have been against the one half of which was to be applied to the cur
corporate authorities of the City of Browns-rent expenses and the other to the old debts.
ville before its charter was repealed."

Specific power was also given to one of the
Petitioner prays in conclusion, together with 'commissioners,' called the 'secretary and fi
other relief not material to be mentioned here, nancial agent,' to assess and collect this tax.
for an alternative writ, on hearing to be made The general Act of 1883, already noticed, relat-
peremptory, "commanding defendants to levying to all taxing districts had been passed, but
and collect a tax sufficient to pay petitioner's
judgments aforesaid, and all costs on same, and
all costs incurred in his mandamus proceedings
heretofore had by his intestate to collect the

same."

On the 27th of March, 1886, a rule to show
cause was entered, to which defendants ap-
peared and moved to quash, which motion
was treated by agreement as a demurrer, and
subsequently the court delivered its opinion in
decision of the questions thus raised (29 Fed.
Rep. 742), a portion of which is as follows:

"Following a public policy reviewed in its
application to the City of Memphis in Meri |
wether v. Garrett, 102 U. S. 472 [26: 197], the
Legislature of Tennessee, in 1879, inaugurated
a plan of relief for insolvent municipal corpo-
rations, whereby it was expected they could
escape the payment of their debts, unless the
creditors would accept the 'settlements' tend-
ered them under the provisions of the legisla-
tion. The general plan was to repeal the
charters, so that there should be no officials or
agencies liable to judicial compulsion by man-
damus; then to supply other agencies of local
government invested with all the powers of the
old municipalities, except the taxing power,

by an Act of 1885 the Act of 1881, relating to
taxing districts of the second class,' was
amended, and section 2 gives the commission-
ers the most ample power to levy taxes and ap-
propriate money to provide for the payment of
'all the debts and current expenses of the dis-
tricts.' Acts 1885, c. 82, p. 162. It is appar
ent that, notwithstanding the general Act of
1883, and its broad repealing clause, the Legis
lature (or rather the authors of this legislation
relating to Brownsville) considered the Act of
1881 as wholly unaffected by it. But by a
subsequent Act of 1885, at the extra session,
the full powers given under the former Act of
that year were taken away, or rather limited
to the payment of the compromise' bonds
only, the evident object of the last Act being
to correct this careless blunder of a departure
from the general plan of relief already fully
commented upon. Acts extra Sess. 1885, c. 10,
p. 75."

to was approved June 10, 1885, and reads thus:
The Act of the extraordinary session referred

"SECTION 1. Be it enacted, by the General
Assembly of the State of Tennessee, That sec-
tion 2 of an Act entitled 'An Act to Establish

[498]

[499]

poration implies that the officials governing the
municipality shall perform it, and it will be
enforced by mandamus against the new com-
missioners who take the place of the former
mavor and aldermen.

Taxing Districts of the Second Class, and to
Provide the Means of Local Government There-
for,' passed March 30, 1885, be so amended as
to read as follows: That section 8 of said Act,
passed April 1, 1881, be so amended as that the
board of commissioners, after the debts of the Any taxes levied by the Legislature for mu- [500]
taxing districts shall have first been compound-nicipal purposes, or grants of power to a mu-
ed between said taxing districts and creditors, nicipality to make such levies, may be repealed,
shall have power by ordinance within the dis- if they be subsequent to the contract involved,
trict to levy taxes upon all property taxable by as there is no protection under the Federal
law for state purposes, and upon all privileges Constitution, except for such powers of taxation
and polls taxable by law for state purposes, and as enter into and become a part of the contract
may appropriate the money arising from the col- itself and belong as a remedy to the creditor.
lection of taxes so levied, after defraying the
current expenses of the taxing district, to the
payment of the debts of said taxing district that
have been compromised; and anything in said
section 2, or in the Act passed March 30, 1885,
in conflict with this Act is hereby repealed.
"SEC. 2.
And be it farther enacted, That
this Act take effect from and after its passage,
the public welfare requiring it.'

"

Those agencies existing for the local government of a municipality are bound to perform such duties as are necessary to enforce the taxing power, although not especially designated for that purpose, if there be a general grant of the power of taxation to the municipality itself. This duty is implied from the general grant, whether it be conferred directly by statute upon the particular municipality or devolved upon it as the successor in corporate obligation through a grant to its predecessor; therefore a mandamus will lie to enforce, by taxation, the payment of judgments against the original corporation, to be directed to the governmental agencies of the new corporation, they to proceed according to the general laws of the State governing the exercise of the taxing power by municipalities possessing the authority.

Under the legislation of Tennessee repealing municipal charters and reorganizing the inhabitants into taxing districts, contrived to compel creditors to accept a compromise of their debts at reduced amounts, the prohibitions of the exercise of the taxing power by the new local governments are void, so far as relates to those grants of that power to the old corporations, which enter into contracts as a part of the remedy of creditors; and the "taxing districts" may be compelled to exercise the power given by these original grants, by proceeding, according to the general tax laws of the State, to certify to the county court clerk the necessary rate to pay the judgment, to be extended upon the tax books and collected as other taxes are collected. It is not necessary that the particular officials to perform this duty shall be designated in the statute; but the general grant to the cor

The demurrer having been overruled, the respondents answered, denying the possession of any power or authority to levy any tax whatever to pay judgments and indebtedness such as represented by the petitioner; and averring that the old corporation had no power or authority in law to levy a tax for such purposes, and consequently no such power or authority devolved upon the taxing district; and that the power and authority to issue the bonds and levy a tax to pay interest thereon, upon which plaintiff's suits were founded, "was given to Brownsville by the Act of February 8, 1870, by the Legislature of Tennessee, but before the contract was completed or the election under said Act of 1870 held by Brownsville, or the bonds issued, the said Act of 1870 was repealed and abrogated by the Constitution of the State of Tennessee, which went into effect May 5, 1870." Respondents further alleged that the judgments were obtained by default, and that on the previous mandamus proceedings the question of want of power because of the abrogation of the Act of February 8, 1870, was not raised. Motion to quash this answer or return was then made by petitioner, and the cause submitted upon such motion, together with an agreed statement of facts to the same effect as the statement in the preceeding case, No. 1442, it being also stipulated that the judgments had been obtained by default and that the question of power in the corporation to levy a tax because the Act of 1870 had been abrogated by the Constitution was not raised in defense to the previous applications for writs of mandamus.

The circuit court held (36 Fed. Rep. 149) that "No defense can be made to a writ of mandamus issued upon a judgment by default against a municipal corporation which might have been made to the original suit upon the coupons," and "therefore, where bonds issued [501] without legislative authority were invalid, that the defendant corporation was bound by a judgment by default upon the coupons, and could not set up as a defense to the mandamus that there was no Act commanding the tax to be levied, this being the same defense as the other, when it depends upon want of authority to issue the bonds, as in this case."

In the opinion of the court, although the Act of February 8, 1870, was abrogated by the State Constitution and the bonds were therefore void, yet judgment upon the coupons conclusively established the validity of the bonds, and so also the validity of the legislation giving the remedy by a levy of taxes for their payment.

The return of the respondent was according ly quashed, and judgment entered awarding the peremptory writ as prayed.

=2]

Messrs. W. W. Rutledge and Wm. M. | payment of the debt and expenses of the city,"
Smith, for plaintiffs in error:

Where the petition or writ shows the bar, a
demurrer or motion to quash is proper.
Cannon v. Laman, 7 Lea, 513.

When the holder took the bonds, he was
chargeable with knowledge that the election
and issuance were both after the Constitution,
and also with notice that the Constitution an-
nulled the Act under which the bonds purport
to be issued.

Concord v. Robinson, 121 U. S. 165, 170 (30: 885, 838).

The corporation must have the authority to levy and collect taxes for the particular debt reduced to a judgment before a mandamus can issue.

Burroughs, Public Securities, 539-546; Heine v. Levee Comrs. 86 U. S. 19 Wall. 655 (22: 223). | We have no power by mandamus to compel a municipal corporation to levy a tax which the law does not authorize.

U. S. v. Macon Co. 99 U. S. 582 (25: 331). The remedies given by the original contract are carried with it when merged into a judgment, and these remedies are all the creditor

has.

Harshman v. Knox Co. 122 U. S. 306 (30: 1152); Ralls Co. Ct. v. U. S. 105 U. S. 733 (26: 1220); Jeffries v. Lawrence, 42 Iowa, 498.

The power to subscribe for stock in a railroad does not include the power to tax to pay for the stock.

Dillon, Taxn. 678; Dillon, Mun. Corp. § 605; Cooley, Const. Lim. 518; 2 Desty, Taxn. 10531076.

The writ of mandamus is nothing more than an action at law between the parties.

Ky. v. Dennison, 65 U. S. 24 How. 66 (16: 717).

It does not issue as a matter of right. It is in the nature of an action.

the power so vested was confined in its exercise
to taxation for ordinary municipal purposes,
and the payment of debts contracted in the
ordinary administration of municipal affairs.
Debt created by the issue of bonds in aid of
railroad construction was not within the pur-
view of the charter power; but by the Act of
February 8, 1870, the power to tax to pay the
interest on and create a sinking fund for the
redemption of the bonds authorized to be issued
thereunder was expressly given.

This express grant fell with the abrogation
of the Act by the taking effect on the 5th of
May, 1870, of the new State Constitution, and
in Norton v. Brownsville, ante, 785, we have held
that the bonds, upon coupons detached from
which the judgments sought to be collected
here were rendered, were void, not because of
a defective exercise of the power to issue
them, but because of a total absence of such
power.

It is, however, contended that the coupons having passed into judgments, not only is all inquiry into their validity precluded, but also any denial of the power to tax to pay them granted by the Act of February 8, 1870.

As already remarked, the circuit court did not hold that the peremptory writ should go to command a levy to pay judgments as debts in that form, but based its order upon the inability of the respondents by reason of the judg ments to assert the abrogation of the Act in question.

Under the legislation between the issue of the
bonds in 1870 and this application in March,
1886, authority to levy taxes to pay debts of
the character represented by these judgments,
when uncompromised, did not exist at the lat-
ter date, so that plaintiff was remitted, in the
assertion of a right to that remedy, to the time
when the bonds were issued, and as the city
had then no power to tax to pay them other
than that derived from the Act of February 8,
1870, the relator by his pleadings opened the
facts which attended the judgments for the pur-
pose of counting upon that Act as furnishing
the remedy which he sought. In this he in
effect asked the court to order the levy of a tax
to pay the coupons, and relied on the judg-
Mr. Chief Justice Fuller delivered the opin-ments principally as creating an estoppel upon
a denial of the power to do so.

Moody v. Fleming, 4 Ga. 115, 48 Am. Dec. 210.
It is not grantable as of absolute right.
High, Extr. Rem. $$ 5-8; Moses, Manda-
mus, 18 et seq.; Judd v. Driver, 1 Kan. 455;
Mc Bane v. People, 50 Ill. 503.

Messrs. Sparrel Hill, Henry Craft and
L. P. Cooper for defendant in error.

ion of the court:

Mandamus lies to compel a party to do that which it is his duty to without it. It confers no new authority, and the party to be coerced must have the power to perform the act.

On the 19th of March, 1886, when this petition was filed, had the board of commissioners the power to levy and collect taxes to pay the judgments in question?

The circuit court, in deciding that it had, proceeded upon the ground that the source of power was the Act of February 8, 1870, and we concur in the view that there was no other. The City of Brownsville possessed no inherent power to tax; and while under an Act of February 24, 1870, its inhabitants were constituted a corporation and body politic by the name and style of the Mayor and Aldermen of the City of Brownsvile," with power by ordinance "to levy and collect taxes upon all property, privileges, and polls taxable by the laws of this State, to appropriate money, and to provide for the

Thus invited to look through the judgments
to the alleged contracts on which they are
founded, and finding them invalid for want of
power, must we nevertheless concede to the
judgments themselves such effect, by way of
estoppel, as to entitle the plaintiff ex debito
justitia to a writ commanding the levy of taxes
under a statute which was not in existence when
these bonds were issued?

The case of Harshman v. Knox County, 122
U.S. 306 [30: 1152], is referred to by the learned
Judge holding the circuit court as in principle
identical with this.

In that case, under section 17 of the General
Railroad Law of Missouri, the county court of
a county was authorized to subscribe to the
stock of railroad companies, though created by
special charter, provided the requisite assent of
the qualified voters was duly obtained; and
section 18 of the law provided that a special tax
might be levied for the purpose of paying such

[503]

bonds without limit as to its amount. Under | authorized the issue and gave the power to tax
section 13 of the Act incorporating the Missouri to pay. But in the case at bar it appeared from
and Mississippi Railroad Company, taxes might the judgment records, or if not, from relator's
be levied to pay bonds issued thereunder, but petition, that the bonds were issued under an
not to exceed one twentieth of one per cent abrogated statute, and were consequently void,
upon the assessed value for each year. Harsh- and that the respondents possessed no power to
man recovered judgment upon bonds and tax to pay them, because that power was given
coupons issued by Knox County in part pay-only by the statute which had so ceased to
ment of a subscription made by said county to exist.
the capital stock of the Missouri and Mississippi
Railroad Company, upon a petition setting
forth that the subscription was authorized
under the 17th section of the General Railroad
Law. The judgment not being paid, he
brought his proceedings by mandamus for the
levy of a special tax to pay it, without limit as
to the percentage, again alleging that the sub-ance of the fact that the bonds are utterly void
scription, in part payment of which the bonds
were issued, was authorized by vote under said
17th section.

The power invoked is not the power to tax to pay judgments, but the power to tax to pay bonds, considered as distinct and independent, and therefore, when the relator is obliged to go behind his judgments as money judgments merely, to obtain the remedy pertaining to the bonds, the court cannot decline to take cogniz

The judgment is reversed and the cause remanded with a direction to dismiss the petition.

G. W. NORTON ET AL., Plffs. in Err.,

v.

THE BOARD OF COMMISSIONERS
OF THE TAXING DISTRICT OF
THE CITY OF BROWNSVILLE.

(See S. C. Reporter's ed. 505, 506.)

and that no such remedy exists. Res judicata may render straight that which is crooked, and black that which is white, Facit ex curvo rectum, Upon the trial the circuit court required the ex albo nigrum; Jeter v. Hewitt, 63 U. S. 22 relator to put in, with the record of the pro- How. 352, 364 [16:345, 348]; but where appli[504] ceedings and judgment, the bonds; and it`ap- cation is made to collect judgments by process peared that the latter recited that they were is not contained in themselves, and requiring, to sued for a subscription authorized by the Act be sustained, reference to the alleged cause of incorporating "the Missouri and Mississippi action upon which they are founded, the aid Railroad Company;" and as the jury found of the court should not be granted when upon that the relator had not proved that, despite the face of the record it appears, not that mere the recitals in the bonds, they were issued un- error supervened in the rendition of such judgder the general law, the court rendered judgments, but that they rest upon no cause of acment in favor of the respondents. But this tion whatever. court reversed that judgment upon the ground that, as "It was part of the plaintiff's case to show, not merely the execution of the bonds by the county authorities, but that they were issued in pursuance of a law making them the valid obligations of the county," and it having been averred that they were issued under section 17 of the General Railroad Law (c. 63, Stat. at L. 1866), that fact was confessed by the default, and its truth stood admitted on the record, and as mandamus in such cases was a remedy in the nature of an execution, it could in that case be limited in its mandate "only by that which the judgment itself declares." And the court says, Mr. Justice Matthews delivering the opinion: "It may well be that in a case where the record of the judgment is silent on the point, the original contract may be shown, notwithstanding the merger, to determine the extent of the remedy provided by the law for its enforcement; but that is not admissible where, as in this case, the matter has been adjudged in the original action. By the terms of the judgment in favor of the relator, it was determined that the bonds sued on were issued under the authority of a statute which prescribed no limit to the rate of taxation for their payment. In such cases, the law which authorizes the issue of the bonds gives also the means of payment by taxation. The findings in the judgment on that point are conclusive." But there the power to issue the bonds was not questioned. The controversy was as to the rate of taxation, depending upon which Act they were issued under. If the original contract could have been resorted to, the decision might have been otherwise as to the rate; but it was held that that could not be done, because, from the averments which formed part of the complete judgment record, it appeared that the bonds were issued under one Act rather than the other, while each of the Acts fully

[505]

Want of jurisdiction-filing of record.
28, 1886, and the citation was returnable to the Oc-
Where the writ of error was brought December
tober Term 1887 and served in January and March
of the latter year, but the record was not filed until
December 20, 1888, this court has no jurisdiction of

the case.

Submitted Jan. 4, 1889. Decided March 5, 1889.
[No. 1455.]

ERROR to the Circuit Court of the United

IStates for the Western District of Tennessee,
to review a judgment against plaintiffs in error.
Dismissed.

Messrs. Sparrel Hill, Henry Craft and
L. P. Cooper for plaintiffs in error.

Messrs. W. W. Rutledge and Wm. M.
Smith for defendant in error.

[505]

Mr. Chief Justice Fuller delivered the opin [506] ion of the court:

Judgment was rendered against the plaintiffs in error in the Circuit Court of the United States for the Western District of Tennessee on the 29th of November, 1886, and writ of error brought December 28, 1886, accompanied by a citation to the adverse party, duly returnable to the October Term, 1887, and served in January and March of the latter year. But the record was not filed herein until December 20, 1888,

[470]

and the rule is settled that under such circum- | tado v. Cal. 110 U. S. 535 (28: 238); Hagar v.
stances we do not entertain jurisdiction. Reclamation Dist. 111 U. S. 708 (28: 572).
Grigsby v. Purcell, 99 U. S. 505 [25:354]; Credit
Co. v. Ark. Cent. R. Co. 128 U. S. 258 [ante,
448]; Hill v. Chicago & E. R. Co. January 21,
1889 [ante, 651]; Edmonson v. Bloomshire, 74
U. S. 7 Wall. 306 [19:91].

Act for relief of heirs of John Bouligny-vested
right-joint resolution-deprivation of prop-
erty without due process-jurisdiction of Su-143); McCracken v. Hayward, 43 U. S. 2 How.
preme Court of District of Columbia.